Environmental impact assessments: The test for whether or not a proposed development required an Environmental Impact Assessment was considered.

EIA: The correct approach to take to screening opinions when a proposed development was split into two separate planning applications had to take into account the composite nature of the development. The Court exercised its discretion to refuse to grant relief, notwithstanding that it found a violation of the EIA Directive by virtue of the grant of a planning permission upon a defective screening opinion. Also a case on "salami slicing".

Form of EIA: Whether EIA needs to contain information relating to the need for development

Relationship to conditions: A planning committee could not properly make a decision not to have an Environmental Impact Assessment or a Habitats Appropriate Assessment based on a finding that there was no risk of pollutants entering a nearby river but at the same time impose conditions on the planning permission.

Review of screening decision: Nothing in the Aarhus Convention or European legislation requires the court to apply anything other than the Wednesbury standard to the review of a screening decision.

Habitats directive: A plan or project which is not directly connected with or necessary to the management of a site will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the characteristics of that site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the site’s designation as a Site of Community Interest.

Protective costs orders: When assessing whether proceedings are “prohibitively expensive” for the purposes of the Aarhus Convention, a court must look to both the financial resources of the individual claimant, and an “average claimant”. The assessment is not purely financial, and the court should also have regard to the importance of the claim, its complexity and the chances of the claim succeeding when assessing what would be prohibitively expensive.

The test for whether or not a proposed development required an Environmental Impact Assessment was considered. The Secretary of State was entitled to conclude that one was not required in this case.

Facts

The case concerned the redevelopment of a bowls club to include 41 sheltered apartments for the elderly, landscaping and access and a new outdoor bowls green, indoor rink, club facilities and car parking. The Secretary of State noted that the site had already been developed and use as a bowling club was established, it was well under the size of 5 hectares which was the guideline for an EIA for land which had not previously been intensively developed and the residential development of 41 apartments was well below the guideline for consideration of urbanising effect, namely 1,000 dwellings.

The Secretary of State therefore decided that the development would not be likely to have significant effects on the environment by virtue of its nature, size or location. As a consequence he directed that no EIA was required.

The appellant contended that the correct test for determining whether there would be likely to be "significant effects on the environment" was to ask whether the effect was one that was considered to have an influence on the development consent decision and this was the approach advocated in the Guidance on EIA Screening issued by the European Commission.

Decision

The Court of Appeal dismissed the appeal holding that while the decision maker had to have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision, there were no such uncertainties in this case and it was possible to ascertain the likely effects.

The Court agreed that the issue of whether the perceived environmental effect had an influence on the development consent decision was a relevant consideration, but it was not determinative of whether the effects were likely to be significant and ought to be considered.

The test to be applied was whether the project was likely to have significant effects on the environment. Here, the Secretary of State was entitled to conclude that the proposed redevelopment would not have such an effect.

Comment

The test being argued for in this case would have meant that any decision where a particular effect could influence the final decision would render the proposed development subject to an EIA. As the Court of Appeal stated, such an approach would undermine the purpose of the inherent sifting process which required a judgement to be made as to whether “significant” effects were likely. Any effect could impact on a development consent decision and this is not what the Directive or Regulations are aimed at.

The correct approach to take to screening opinions when a proposed development was split into two separate planning applications had to take into account the composite nature of the development. The Court exercised its discretion to refuse to grant relief, notwithstanding that it found a violation of the EIA Directive by virtue of the grant of a planning permission upon a defective screening opinion.

Facts

The facts of this case are somewhat complex and have been significantly abbreviated. In 2011 the Council applied for planning permission for development on the site of a sports stadium comprising the permanent retention of certain stands and a temporary retention of the players’ lounge and changing room for three years. Prior to this, the Council issued a screening opinion which concluded that there would be no significant affects from the development. This was challenged by the Claimant (C), and the Council issued a revised screening opinion after permission had been granted which came to the same conclusion.

C then challenged the grant of planning permission. In 2012 the Council submitted two further applications for planning permission, one substantially the same as the 2011 application and another for an extension of the sports centre on the site. Permission for both applications was granted. Both applications were accompanied by screening opinions that concluded they would not have significant adverse effects. C challenged the permissions by way of judicial review.

Decision

The High court refused the application. A number of issues were considered by the Court.

First the court considered whether the Council had failed to consider the scheme as a whole and had erred in splitting it into two or more discrete sub-projects. As to this the Court held that a project had to be interpreted broadly and a development had to be considered in its entirety, but an authority was not required to speculate about future proposals. Here the Council had considered the project “with a true understanding of the nature and content of the project as a whole”.

The Court also considered whether in screening the development the City Council had unreasonably concluded that it would not be likely to have significant effects on the environment. The Court held that the nature of the judgment required in the screening process was essentially a planning decision maker’s judgment and the court will therefore be reluctant to interfere with it. There was no ground for holding that the Council had acted irrationally, or failed to take into account relevant considerations.

The Court went on to consider whether in screening the development the City Council wrongly relied on guidance in Circular 02/99. The Court held that the guidance was not misleading and did not suggest that a Schedule 2 development would avoid the need for an EIA if its effects on the environment are likely to only be local. In any event, the Council did not slavishly follow the advice in the Circular without taking into account the 2011 Regulations.

Further the Court considered whether the Council had unlawfully assumed, at the screening stage, that mitigation measures would reduce the environmental impacts of the development to insignificance. As to this the Court held that the Council had acted entirely legitimately in considering the operation of standard conditions and a reasonably managed development.

However, the Court held that due to the defects in the first screening opinion, the 2011 planning permission was unlawful. This did not become lawful with the issuing of a revised opinion that reached the same conclusion. Screening is integral to the process of determining an application for planning permission, and a flaw in an opinion cannot be put right by a second opinion carried out later. Notwithstanding this, the Court exercised its discretion not to quash the 2011 planning permission. The Court pointed out that this discretion was a narrow one. Here, to quash the permission would be futile as one of the 2012 permissions was for a development substantially the same as the 2011 permission and the 2011 project was not EIA development. As such C had not been denied an opportunity to participate in an EIA process. Therefore there was no substantial injustice.

Comment

This is a detailed judgment on the specifics of three screening opinions, but there is much in it to guide the appropriate assessment of composite projects in such opinions. Further, the judge’s comments on the discretion to quash in light of apparently conflicting dicta at higher levels are worthy of note – as is his exercise of the discretion he found himself to have. Given the academic nature of the successful ground, this may well be an uncontroversial exercise of that discretion, but there is no doubt still scope for argument over the extent to which courts may refuse to grant relief where a breach of EU law is found.

A proposal to demolish a building that straddled plots covered by two out of three proposed phases of a redevelopment project was properly assessed as a stand-alone proposal for the purposes of a screening decision. Such an approach did not fall foul of the rules on “salami slicing”.

Facts

The local authority had proposed the redevelopment of a rundown area in its development plan. The development plan phased the regeneration and clearance of the existing buildings on the land into three stages, and an unlisted and fire-damaged Victorian chapel of no particular heritage status was within the area covered by phases 2 and 3. It was proposed to demolish the chapel independently of the rest of the redevelopment. The Secretary of State declined to issue a screening direction in relation to the demolition of the chapel on the ground that it was not an environmental impact assessment (EIA) development and would not have a significant effect on the environment.

Issues

The applicant applied for a judicial review of the decision of the Secretary of State’s and challenged the failure to issue a screening decision on two grounds. First, that the Secretary of State had acted unlawfully in failing to consider the chapel’s demolition as part of a larger project (namely phases 2 and 3). Secondly, that the Secretary of State had failed to take into account the cumulative effects of phases 2 and 3 in assessing the proposals relating to the chapel.

Decision

The High Court refused the application. It held that although there was strong European and domestic authority, which had held that “salami slicing” was inappropriate, the present case was not an example of such a practice. Here, the chapel’s demolition could be, and indeed was, considered on its own merits as it was a stand-alone proposal that could be carried out irrespective of whether phases 2 and 3 of the wider regeneration proposals went ahead. It was therefore appropriate to consider it alone for the purposes of determining whether an EIA was required.

In relation to the second ground, the court held that the demolition of the chapel would not lead to phases 2 and 3 coming forward, nor make those phases more likely to come forward. In those circumstances, there was no requirement for the Secretary of State to consider the cumulative effects of phases 2 and 3 in reaching a decision on the chapel’s need for an EIA.

An argument that the form of the EIA was in conflict with the regulatory framework as it comprised a disparate collection of documents (“a paper chase”) was rejected. The claimant’s challenge was unduly legalistic; it was unrealistic to expect an environmental statement to be perfect and the Regulations recognised by way of regulation 22 that further information may be required.

Further, there was nothing in the Regulations that indicated “need” needed to be considered in an environmental statement – indeed, need had no logical connection with environmental issues. There was no authority in support of need being included in an environmental statement.

A planning committee could not properly make a decision not to have an Environmental Impact Assessment or a Habitats Appropriate Assessment based on a finding that there was no risk of pollutants entering a nearby river but at the same time impose conditions on the planning permission. It was irrational for the planning committee to take both positions at the same time.

Facts

The local planning authority granted permission for a development that included a lorry park and the erection of two silos near a river. There were concerns relating to the possible pollution of the river from the proposed development. Various measures aimed at preventing such pollution were proposed but neither an Environmental Impact Assessment nor a Habitats Appropriate Assessment was carried out. Natural England responded to the consultation to the planning application and stated that given the mitigation measures, there would not be a likely significant effect on the river. Planning permission was granted subject to conditions. The claimant (C), a member of a local action group applied for a judicial review of the decision.

Decision

The High Court found for C and quashed the grant of planning permission. When considering whether the test for an assessment was triggered, a planning authority can properly take into account any remedial measures submitted as part of the proposal. The local authority could decide whether an EIA or an Appropriate Assessment was required subject to the test of whether that decision is irrational in the circumstances.

Here the decision not to require either of these assessments would have been a rational and reasonable conclusion on the facts, except that the planning committee also imposed conditions in case pollutants did enter the river. This suggested that the committee considered that there was a risk that pollutants could enter the river. It was not rational for the council to adopt both positions at once. The Council must now either consider if there is no risk of pollutants entering the river, when planning permission can be granted, but then no relevant conditions may be imposed. If they consider there is such a risk they must order the assessments.

Nothing in the Aarhus Convention or European legislation required the court to apply anything other than the Wednesbury standard to the review of a screening decision.

Facts

P applied for planning permission for 170 dwellings on a site in Sudbury. The District Council initially failed to screen the application under the Environmental Impact Assessment Regulations, but later issued a screening opinion that the development would not have significant environmental effects. This opinion was challenged by the applicant, and in a second screening opinion the Council determined that an EIA was in fact necessary. P then requested the Secretary of State make a screening direction. The Secretary of State subsequently issued a screening decision that the proposed development was not likely to have significant effects on the environment, partly because the development was situated in a natural ‘bowl’ in the land and a nearby Grade I listed building was well screened by trees. The High court refused the applicant (E) leave to apply for a judicial review of the screening direction made by the Secretary of State. E applied for permission to appeal that decision.

Issues

The applicant argued that:

The Secretary of State ought to have taken a “precautionary” approach when making the screening decision; and

The Wednesbury test was not the appropriate standard of review.

Decision

The Court of Appeal refused E’s application. The Court held that far from failing to take a precautionary approach, the Secretary of State, in concluding that the proposed development “would not cause a significant environmental impact”, had in fact taken a more precautionary approach that was required.

The challenge to Wednesbury as an appropriate standard of review failed on a number of grounds. E’s had relied on the Aarhus Convention and its Compliance Committee’s concerns about the Wednesbury approach. However, this was not part of domestic or EU law; these concerns were general and particularised, may have been incomplete and were of no direct legal consequence. Further there was established domestic (Bowen-West [2012] EW Civ 321, Loader [2012] EWCA Civ 869) and European (C-508/03 Commission v UK [2006] QB 764) precedents that endorsed the current Wednesbury approach. The arguments put forward in the present case were essentially a rerun of the arguments in those cases; and in any event a proportionality based test was inapt to apply to a decision of fact, such as whether a development would have significant environmental effects.

A plan or project which is not directly connected with or necessary to the management of a site will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the characteristics of that site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the site’s designation as a Site of Community Interest.

Facts

In 2008, An Bord Pleanala (A) granted development consent for a bypass, which was planned to cross a Site of Community Interest (SCI). This SCI hosts 14 habitats referred to in Annex I of the Habitats Directive, of which six are priority habitat types including karstic limestone pavement. The bypass would lead to the loss of 1.47 hectares of that limestone pavement. A determined that the bypass would have a locally significant negative impact on the SCI, but would not have an adverse effect on the integrity of the site. This was challenged by S. The High Court refused leave to issue a judicial review. S subsequently appealed to the Supreme Court, and the Supreme Court referred three questions to the CJEU.

Questions

The questions were:

What are the criteria in law to be applied by a competent authority to an assessment of the likelihood of a plan or project the subject of Article 6(3) of the Habitats Directive, having “an adverse effect on the integrity of the site”?

Does the application of the precautionary principle have as its consequence that such a plan or project cannot be authorised if it would result in the permanent non-renewable loss of the whole or any part of the habitat in question?

What is the relationship, if any, between Article 6(4) and the making of the decision under Article 6(3) that the plan or project will not adversely affect the integrity of the site?’

Legal context

Article 6(2) of the Habitats Directive requires member states to take appropriate steps to avoid the deterioration of natural habitats in SCIs. Article 6(3) provides for an assessment procedure whereby any “plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives”.

Decision

Where a plan is likely to undermine the site’s conservation objectives, the CJEU held that it must be considered likely to have a significant effect on that site. Subject to Article 6(4), the second stage of Article 6(3) permits a plan to be authorised only if it does not adversely affect the integrity of the site. Article 6(4), however, provides that if an assessment under 6(3) is negative, but the plan or project must be carried out for imperative reasons of overriding public interest and there are no alternative solutions, the member state may authorise the plan, but must make compensatory measures.

The CJEU emphasised that Article 6 imposes a series of specific obligations designed to maintain (or restore), natural habitats and special areas of conservation at a favourable conservation status. Consequently, authorisation under Article 6(3) can only be given once the decision maker is “certain” in light of the “best scientific knowledge in the field” that the plan will not have lasting adverse effects on the integrity of that site”. For this to be so there can be no reasonable scientific doubt as to the absence of such effects and this requires the assessment to “contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned”. This reflects the precautionary principle.

The CJEU was clear that where the decision maker, under an Article 6(3) assessment, concludes that the plan “will lead to lasting and irreplaceable loss of the whole or part of a priority natural habitat type whose conservation was the objective that justified the designation of the site concerned as an SCI, the view should be taken that such a plan or project will adversely affect the integrity of that site” such that it cannot be authorised under Article 6(3).

As regards the relationship between Articles 6(3) and (4), the CJEU held that Article 6(4) can only apply after the implications of a plan have been analysed in accordance with Article 6(3), from which 6(4) derogates. It cannot therefore influence the Article 6(3) assessment.

When assessing whether proceedings are “prohibitively expensive” for the purposes of the Aarhus Convention, a court must look to both the financial resources of the individual claimant, and an “average claimant”. The assessment is not purely financial, and the court should also have regard to the importance of the claim, its complexity and the chances of the claim succeeding when assessing what would be prohibitively expensive.

Facts

E challenged the grant of an environmental permit to a cement works. He was unsuccessful at first instance and brought an appeal before the Court of Appeal. E subsequently withdrew from the case, and P was granted leave to continue the case as the appellant. The Court of Appeal dismissed her appeal and she appealed to the House of Lords. Her application for a Protective Costs Order was refused. The House of Lords also dismissed her appeal and ordered her to pay the respondents’ costs. The respondents’ claimed costs of £88,100.

In a costs hearing, two costs officers of the Supreme Court held that they were competent to assess P’s argument that the amount of costs sought was “prohibitively expensive”. This decision was appealed by the respondents to the Supreme Court, which held that the costs officers ought to have confined their role to assessing the quantum of the costs. However, the Supreme Court held that as the House of Lords had not considered whether the costs order against P was contrary to the Aarhus Convention when it was made, it would refer five questions to the Court of Justice of the European Union (CJEU).

Questions

The questions were:

How should a national court approach the question of awards of costs against a member of the public who is an unsuccessful claimant in an environmental claim, having regard to the requirements of Article 9(4) of the Aarhus Convention, as implemented by Article 10a of Directive 85/337 and Article 15a of Directive 96/61?

Should the question whether the cost of the litigation is or is not “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention as implemented by those directives be decided on an objective basis (by reference, for example, to the ability of an “ordinary” member of the public to meet the potential liability for costs), or should it be decided on a subjective basis (by reference to the means of the particular claimant) or upon some combination of these two bases?

Or is this entirely a matter for the national law of the Member State subject only to achieving the result laid down by those directives, namely that the proceedings in question are not “prohibitively expensive”?

In considering whether proceedings are, or are not, “prohibitively expensive”, is it relevant that the claimant has not in fact been deterred from bringing or continuing with the proceedings?

Is a different approach to these issues permissible at the stage of (i) an appeal or (ii) a second appeal from that which requires to be taken at first instance?

Decision

The CJEU addressed the questions together. The CJEU emphasised that the requirement that proceedings not be “prohibitively expensive” means:

“that the persons covered by those provisions should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result”.

As to the role of national law, the CJEU held that the assessment of costs to determine whether they were prohibitively expensive cannot be a matter for national law alone due to the need for the uniform application of EU law and the principle of equality. However, the CJEU admitted a limited role for national law in that in assessing expense regard had to be had to national legal aid and cost protection schemes.

The CJEU adopted something of a halfway position between an objective and subjective standpoint. It held that in assessing expense, both the interests of the individual claimant and the public interest in protecting the environment had to be taken into account. Therefore the cost of proceedings should neither exceed the financial resources of the person concerned nor appear to be objectively unreasonable.

However, the CJUE also made it clear that the court is not limited to considering financial aspects when assessing what would be prohibitively expensive. It may also take into account the prospect of success, the importance of the case both to the claimant and the environment, complexity and the potentially frivolous nature of the claim.

In relation to the last two referred questions, the CJEU answered in the negative. In assessing expense it is, in itself, irrelevant that a claimant has not been deterred, from brining their claim. Finally, the CJEU said that the issue cannot assessed differently by a national court depending on whether it is adjudicating at the conclusion of first-instance proceedings, an appeal or a second appeal.

Comment

This case brings some clarity to the assessment of “prohibitively expensive” and the articulation of the twin objective/subjective approach is to be welcomed. However, it remains to be seen how the decision works alongside the new amendments to Part 45 of the CPR, (applying to cases commenced after 1 April 2013) which introduce a fixed-cost regime for Protective Costs Orders. There appears to be room for conflict between the two regimes; although there is provision for the cost caps in the CPR to be reduced, they cannot be increased. This risks potential unfairness to both sides in particularly complex disputes.